Mediation in the United States: History, Competencies, Government Involvement, and Ethical Considerations

What is the history of mediation in the United States?

Mediation in the United States began in the early 18th century as a response to labor protests and social unrest (Saul, 2012). The workers' unions were often demanding better working conditions and higher wages. However, most of the companies resisted, while the unrest caused disruptions to businesses. In most cases, the strikes by the workers were always met with violence. As a result, there was the establishment of collective bargaining with mediation forming the center stage. It noted that the first professional mediators in the United States were the 'Commissioners of Conciliation,' who were appointed in 1913 by the Secretary of Labor (Saul, 2012).

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In 1935, there was the passing of the National Labor Relations Act instituted collective bargaining as a core mechanism for the management of labor conflicts (Saul, 2012). In 1946 there was the formation of the Federal Mediation and Reconciliation service resulting in the provision of staff of full mediators ready to promote negotiations between the unions and the top management (Saul, 2012). In the 1970s, courts across the country began using it to manage crowded dockets (Saul, 2012). Collective bargaining was always between appointed representatives and various groups representing the workers and the management.

Again, one of the significant developments in mediation history was linked to the 1960 civil unrest characterized by tensions over discrimination and racial tensions (Saul, 2012). Los Angeles, Detroit, and Boston were some cities in which riots and further conflicts resulted from police response to demonstrations. As such, most labor mediators and community activists thought collective bargaining could bring people to talk, thus restoring calm in such cities. As community-based programs and court systems evolved in the 1980s and 1990s, they emphasized mediation as a mechanism that allowed creative solutions, self-determination, and quicker response (Saul, 2012).

What is known about the competencies required in quality mediation?

Over the last four decades, mediation has come to be considered a viable and essential alternative to litigation since it is faster and cheaper as it permits the parties to take more control of the conflict resolution process (Bowling & Hoffman, 2000). There are some competencies that have been considered necessary for quality mediation. One of the essential competencies is empathy, which is the ability to see things from other people's perspectives (Bowling & Hoffman, 2000). A successful mediation process requires that the mediator acknowledges and listens not only to the other parties' positions but also to their emotions. In light of emotional intelligence, empathy is considered fundamental as it involves the mastery of listening skills.

Furthermore, for quality mediation to be realized, there should be multivalent thinking. A mediator should be able to think very quickly on a number of levels all at once. They should simultaneously keep an eye on the emotions, flow of information, content as well as the verbal and non-verbal messages (Bowling & Hoffman, 2000). Again, the mediator must hold high levels of authenticity. For instance, Benjamin (2009) argues that a mediator must develop some sense of authenticity, thus allowing for the development of trust (Bowling & Hoffman, 2000).

The mediator must also practice emotional intelligence and impulse control. Schreier (2002) noted that it is essential for the mediator to be comfortable with his emotional expressions since it is likely to influence the choice of strategy by the mediator (Bowling & Hoffman, 2000). Again, the mediator's presence is another essential competency for a successful mediation process. A mediator must be uniquely and remarkably present during mediation and bring all aspects of themselves into the process. Since mediation involves promoting agreements between two opposing parties, neutrality is one of the most important qualities that should be possessed by the mediator. The mediators should be fair, trustworthy, and able to allocate their attention and time evenly.

What has the federal government and its agencies done to encourage mediation?

The Federal government has passed a myriad of laws and policies that permit the growth of alternative dispute resolutions (ADR). Mediation has become a familiar fixture within most of the United States' legal institutions (Nussbaum, 2016). For instance, when various disputants present their complaints to the administrative agencies or courts, they are often required to first participate in a mediation process in which they hold a confidential meeting with a third party to try to resolve their differences (Nussbaum, 2016). The federal government has also widened the scope of legislations that require mediation in recent years. For instance, several state legislations compel private parties to mediate some types of disputes.

It is also essential to note that the state statutes in the country particularize or compel the mediation process to signal a new phase in the institutionalization of the mediation process. The term institutionalization of the mediation process has been adopted to refer to how the private and the public entities have mediation as a legitimate and standard process in conflict resolution. The state and federal legislatures ordinarily give administrative and court agencies the discretion to design various mediation programs as well as establish guidelines for mediators and the parties involved (Nussbaum, 2016).

Mediation has been encouraged by the Federal government through the promotion of its application in a range of disciplines such as medical malpractices, personal injuries, probate, businesses, education, labor and employment, criminal cases, and community and environmental cases. It is now connected with the state and the federal courts both at the appellate and the trial levels (Nussbaum, 2016). Again, mediation is being adopted by several administrative agencies in quasi-legislative and quasi-judicial activities. In the private sector, various businesses involve mediation in their contracts with each other and with their employers and customers (Nussbaum, 2016).

What are the ethical obligations of mediators?

The mediators have the ethical obligation to maintain confidentiality and privacy in their proceedings in order to maintain an atmosphere of trust in their mediation process. As such, the mediators need to make it clear from the onset of the mediation process that no information would be used later without permission (Ridge, 2018). Apart from the issue of professional ethics, the clients need to be assured of their rights to confidentiality with the aim of improving effectiveness in the mediation process. The mediators should also ensure that both parties are informed about the nature of the mediation process and the terms of the settlement (Ridge, 2018). As such, the parties can understand the procedures to be employed by the mediator during the process as well as the mechanism for evaluating the outcomes. It is the ethical obligation of the mediator to seek informed consent from all the participating parties.

Furthermore, it is the ethical obligation of the mediator to protect the voluntary participation of each of the parties. The right to reach a voluntary agreement is key to any mediation process (Ridge, 2018). Therefore, mediators need to conduct the mediation process in a way that maximizes such voluntariness. Again, the mediators should not influence the content of decision-making in the process of mediation (Ridge, 2018). It is the ethical obligation of the mediator to remain fair and treat the parties equally. To be an effective, professional, and fair mediator, he/she should act neutral and impartial to all the parties (Ridge, 2018).

Is neutrality completely possible?

The main challenge that plagues the mediator's neutrality is the fact that the mediation process is neutral. As such, there is ultimate difficulty in ensuring that the mediator remains neutral. Since external investigations are often difficult to conduct, the mediators largely remain unchecked. Even if there could be external investigations, the main challenge is the difficulty in examining how neutral a mediator is (Bailey, 2014). It is essential to ensure that there is no undue intervention of the mediators in the mediation process. However, it has been recognized that neutrality does not entirely bar a mediator from engaging in the mediation process (Bailey, 2014). The problems of neutrality could be overcome by identifying, developing, and maintaining equality of power and determination of the disputing parties in order to reach a mutual and fair outcome.

A mediator must, therefore, locate a correct balance between too many interventions and too few interventions to achieve neutrality in practice (Bailey, 2014). Any accurate power examination of the disputing parties should lead to imbalances as well as provoke the mediator to enhance communication. As such, the mediators need to gain an accurate and deep understanding of each of the party's positions so that they intervene without undue bias and only when necessary (Bailey, 2014). However, mediator neutrality could be practically possible provided the mediator can show the extent of his intervention in any given scenario. As such, the mediators should ensure the disputing parties do not abuse the process of mediation through some unfair techniques.

References

Bailey, P. (2014). Neutrality in mediation: an ambiguous ethical value. Journal of Mediation & Applied Conflict Analysis, 1(1), 53-56. http://mural.maynoothuniversity.ie/4675/Bowling, D., & Hoffman, D. (2000). Bringing peace into the room: The personal qualities of the mediator and their impact on the mediation. Negotiation Journal, 16(1), 5-28. https://link.springer.com/article/10.1023/A:1007586102756Nussbaum, L. (2016). Mediation as regulation: Expanding state governance over private disputes. Utah L. Rev., 361. https://heinonline.org/HOL/LandingPage?handle=hein.journals/utahlr2016&div=14&id=&page=Ridge, C. (2018). Mediation: Misrepresentation and ethics in mediation. LSJ: Law Society of NSW Journal, (43), 84. https://search.informit.com.au/documentSummary;dn=510517537538884;res=IELHSSSaul, J. (2012). The legal and cultural roots of mediation in the United States. Opinio Juris in Comparatione, (1). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2125440